Opinion
Decided June, 1884.
Where the facts appearing on the trial of an action of trover showed that the plaintiff was entitled to recover for the same cause in an action of assumpsit, the court declined to consider the question whether trover could be maintained, but gave the plaintiff leave to amend by joining a count in assumpsit, and thereupon ordered judgment.
TROVER, for six tons of straw-board. Facts found by the court. July 18, 1881, the plaintiff, at the request of the defendant, receipted to an officer for six tons of straw-board which had been attached on a writ against the defendant. He did not see the straw-board; and there was no agreement that he should have a lien on it as security for signing the receipt. Judgment having been recovered in the suit, an execution was taken out and placed in the hands of the same officer for collection. The officer seasonably demanded of the plaintiff the property mentioned in the receipt; and the plaintiff, being unable to deliver it because the defendant had converted it to his own use, paid the officer the amount of the execution. Some time after the receipt was given, the officer went to the defendant's storehouse, and finding that part of the straw-board had been removed, called with the plaintiff upon the defendant's foreman, and told him that no more of it must be sent away. The plaintiff had no title or possession except as above. Both parties moved for judgment. If the plaintiff is entitled to judgment, it should be for $139.36 and interest from August 24, 1882.
G. W. Murray, for the plaintiff.
Barnard Barnard, for the defendant.
The question presented is of no practical importance. Time spent in considering it would be wasted. If upon examination it should be found that the action in its present form cannot be maintained, the plaintiff would be permitted to amend by filing a count in assumpsit. The facts upon which the rights of the parties depend having been fully tried and determined, there is no occasion for a further trial. The plaintiff may amend by adding a count for money paid (McDuffee v. Railroad, 52 N.H. 459, Buckminster v. Wright, 59 N.H. 153, and Merrill v. Perkins, 59 N.H. 343), and thereupon there will be
Judgment for the plaintiff.
STANLEY, J., did not sit: the others concurred.